E7-3586. Approval and Promulgation of Air Quality Implementation Plans; Virginia; Amendments to VOC and NOX

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving State Implementation Plan (SIP) revisions submitted by the Commonwealth of Virginia. These revisions amend existing volatile organic compound (VOC) and nitrogen oxide (NO_X) emissions control areas, and amend certain VOC and NO_X regulations in order to manage the extension of applicability of these provisions to the amended VOC and NO_X emission control areas. EPA is approving these revisions in accordance with the requirements of the Clean Air Act (CAA).

EFFECTIVE DATE:

This final rule is effective on April 2, 2007.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2006-0921. All documents in the docket are listed in the http://www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT:

Ellen Wentworth, [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On December 26, 2006 (71 FR 77353), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed approval of amendments to 9 VAC 5 Chapter 20, Volatile Organic Compound and Nitrogen Oxides Emissions Control Areas, (9 VAC 5-20-206), and also proposed approval of amendments to 9 VAC 5 Chapter 40, Articles 4, Emission Standards for General Process Operations; Article 36, Emission Standards for Flexographic, Packaging Rotogravure, and Publication Rotogravure Printing Lines; Article 37, Emission Standards for Petroleum Liquid Storage and Transfer Operations; and Article 53, Emission Standards for Lithographic Printing Processes. The formal SIP revisions were submitted by the Commonwealth of Virginia on September 12, 2006, and October 2, 2006.

II. Summary of SIP Revisions

The September 12, 2006 formal SIP revision consists of amendments to 9 VAC 5-20-206 of Chapter 20, Volatile Organic Compound and Nitrogen Oxides Emission Control Areas. Specifically, this revision creates a new VOC and NO_X emissions control area (the Fredericksburg Area), consisting of Spotsylvania County and Fredericksburg City, and expands the existing Richmond VOC and NO_X Emissions Control Areas to include Prince George County and Petersburg City. In addition this revision expands the existing Hampton Roads VOC and NO_X Emissions Control Areas to include Gloucester and Isle of Wight Counties. These amendments are necessary to implement VOC control and contingency measures within the 8-hour ozone nonattainment areas and 1-hour ozone maintenance areas.

The October 2, 2006 formal SIP revision consists of amendments to 9 VAC 5 Chapter 40 that implement non-CTG and CTG VOC RACT control requirements within those areas that are designated as VOC emissions control areas. While most of the Chapter 40 rules apply to sources of VOCs in VOC emissions control areas designated in Chapter 20, 9 VAC 5-206, certain Chapter 40 rules (specifically Articles 4, 36, 37, and 53) have provisions mandating that these regulations apply only to certain VOC and NO_X emission control areas. Article 4, Emission Standards for General Process Operations is being amended to ensure that VOC RACT is not required from large VOC sources in the new areas within the expanded Richmond VOC Emissions Control Areas; Article 36, Packaging and Publishing Rotogravure Printing, and Flexographic Printing, is being amended to add appropriate exemptions for small facilities in those VOC emissions control areas that currently have no such exemptions; and Article 37, Storage or Transfer of Petroleum Liquids, is also being amended to ensure that Stage II Vapor Recovery is not required at gasoline dispensing stations in the new areas within the expanded Richmond VOC Emissions Control Area. Lastly, Article 53, Lithographic Printing, is being amended to apply in all VOC emissions control areas instead of just in the Northern Virginia and Richmond VOC Emissions Control Areas, and is also being amended to provide appropriate exemptions for small facilities in the newly applicable VOC emissions control areas. In this rulemaking, EPA is also recodifying the lithographic printing rule (9 VAC 5-40-7800-7940, inclusive) as Article 53 and Rule 4-53. Other specific requirements and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.

III. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law,Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts * * * .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law.

IV. Final Action

EPA is approving Virginia SIP revisions submitted on September 12, and October 2, 2006, amending the VOC and NO_X emission control areas found in Chapter 20, and amending certain provisions found in Chapter 40 which implement non-CTG and CTG VOC RACT control requirements within certain areas designated as VOC emissions control areas.

V. Statutory and Executive Order Reviews

A. General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 1, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, pertaining to amendments to Chapter 20 and Chapter 40 of Virginia's regulations, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: February 21, 2007.

Donald S. Welsh,

Regional Administrator, Region III.

40 CFR Part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for 40 CFR part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart VV—Virginia

2. In § 52.2420, the table in paragraph (c) is amended by:

a. Revising the entries for 5-20-206, 5-40-300, 5-40-5060, and 5-40-5200.

b. For Chapter 40, Part II, removing the entry for Article 45 and replacing it with an entry for Article 53.

§ 52.2420

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Virginia Regulations and Statutes

State citation (9 VAC 5)	Title/subject	State effective date	EPA approval date	Explanation [former SIP citation]
*         *         *         *         *         *         *
Chapter 20—General Provisions
*         *         *         *         *         *         *
Part II—Air Quality Programs
*         *         *         *         *         *         *
5-20-206	Volatile organic compound and nitrogen oxides emissions control areas	10/04/06	3/2/07 [Insert page number where the document begins]	Addition of new Fredericksburg area and expansion of Richmond and Hampton Roads emission control areas
*         *         *         *         *         *         *
Chapter 40—Existing Stationary Sources
*         *         *         *         *         *         *
Part II—Emission Standards
*         *         *         *         *         *         *
Article 4—Emission Standards for General Process Operations (Rule 4-4)
*         *         *         *         *         *         *
5-40-300	Standard for volatile organic compounds	10/04/06	3/2/07 [Insert page number where the document begins
*         *         *         *         *         *         *
Article 36—Flexographic, Packaging Rotogravure, and Publication Rotogravure Printing Lines (Rule 4-36)
5-40-5060	Applicability and designation of affected facility	04/01/96 10/04/06	3/2/07 [Insert page number where the document begins
*         *         *         *         *         *         *
Article 37—Emission Standards for Petroleum Liquid Storage and Transfer Operations (Rule 4-37)
5-40-5200	Applicability and designation of affected facility	04/01/96 10/04/06	3/2/07 [Insert page number where the document begins
*         *         *         *         *         *         *
Article 53—Emission Standards for Lithographic Printing Processes (Rule 4-53) [Formerly Article 45]
5-40-7800	Applicability and designation of affected facility	10/04/06	3/2/07 [Insert page number where the document begins	Revised to include and exempt certain emission control areas.
5-40-7810	Definitions of “alcohol,” “Cleaning solution,” “fountain solution,” “lithographic printing,” “printing process”	04/01/96 10/04/06	3/2/07 Insert page number where the document begins
5-40-7820	Standard for Volatile Organic Compounds	04/01/96 10/04/06	3/2/07 Insert page number where the document begins
5-40-7840	Standard for Visible Emissions	04/01/96 10/04/06	3/2/07 [Insert page number where the document begins
5-40-7850	Standard for Fugitive Dust Emissions	04/01/96 10/04/06	3/2/07 [Insert page number where the document begins
5-40-7880	Compliance	10/04/06	3/2/07 [Insert page number where the document begins	Revisions to compliance dates.
5-40-7890	Test Methods and Procedures	04/01/96 10/04/06	3/2/07 [Insert page number where the document begins
5-40-7900	Monitoring	04/01/96 10/04/06	3/2/07 [Insert page number where the document begins
5-40-7910	Notification, Records and Reporting	04/01/96 10/04/06	3/2/07 [Insert page number where the document begins
5-40-7920	Registration	04/01/96 10/04/06	3/2/07 [Insert page number where the document begins
5-40-7930	Facility and Control Equipment Maintenance and Malfunction	04/01/96 10/04/06	3/2/07 [Insert page number where the document begins
5-40-7940	Permits	04/01/96 10/04/06	3/2/07 [Insert page number where the document begins
*         *         *         *         *         *         *

* * * * *